I will be doing a running commentary today on the confirmation hearing of Judge Amy Coney Barrett for the Supreme Court of the United States.
The hearing began with a bang with one of the most unadorned and unambiguous statements in favor of originalism by a modern Supreme Court nominee. Judge Barrett declared that the meaning of the language does not change with time.
I was also struck by Barrett’s reference to “super precedent” as a concept raised by others. That was discussed in my column yesterday.
9:24 – Barrett just said that even if a case was wrongly decided, a justice must look at “reliance” on that decision before overturning the case. She confirmed that the issue is not solely whether the precedent was based on a flawed interpretation.
9:25 – Barrett was just asked about recusal from the ACA case. She correctly noted that the case is on the narrow issue of severability. She said she would look at Section 455 and she declined to answer the question citing Ginsburg. There is no reason for her to recuse herself in my view.
9:32 – Feinstein went straight to abortion. She noted that Ginsburg stated that in her confirmation hearing that the Constitution supports abortion. That is a good set up for the question since it negates the impact of the “Ginsburg Rule.” Feinstein references Casey and Scalia’s dissent that Roe should be overruled. Barrett pivoted nicely by citing Kagan rather than Ginsburg. .Kagan refused to answer the same question saying that she would not give “a thumbs up or thumbs down” on abortion questions. The Democrats supported her in refusing to answer the questions.
9:44 – Feinstein has returned to the ACA stories of those impacted by health costs. It is another deeply troubling account and an excellent example of the need for national health care. However, as I have previously stated, this is unfair to Barrett. These are not her victims and she is not supposed to decide cases based on her support for an underlying policy. Barrett correctly answered that such cases most be reviewed on the basis for the law and not these policies. Policies are for Congress. Yet, Feinstein just said her vote would turn on whether she thought Barrett would vote against the ACA.
Voting on a confirmation based on the expectation of a nominee’s vote on a pending case is deeply troubling.
9:49 — Barrett is again trying to explain that the issue in California v. Texas is not an overarching review of the ACA but a narrow issue of severability — an issue that she has not previously addressed.
9:50 — Feinstein is now asking for an opinion on a possible challenge to Trump on interfering with the election. Barrett clearly noted that “we don’t want judges to be legal pundits.” It is a wildly inappropriate question for a nominee before or after the Ginsburg Rule.
9:55 — Feinstein is simply going through a litany of hypotheticals designed to get Barrett to refuse to answer as did Kagan and other nominees before her. This seems an attempt to increase the number of the “she refused to answer” examples. However, her position is the same that justices like Kagan who were supported by Feinstein in refusing to answer.
10:08 — Grassley just asked about legislative history. Barrett expressed a willingness to consider such evidence but that the text must control. Barrett reaffirmed Scalia’s concern about turning to legislative history when the text is clear. She said “as a general rule” she does not look at legislative history but does not rule it out. The indication is that Barrett is at best leery of the use of legislative history like her mentor.
10:17 — Grassley is repeating the Ginsburg rule against giving hints or forecasts on pending or future cases. It does reveal the difficulty for Democrats in seeking to Barrett to contradict the rule most associated with Ginsburg. Barrett said that she agrees with the Ginsburg rule as something that “reinforces judicial independence.” Barrett also repeated that no one has asked her before her confirmation about his view on any case.
10:22 — Leahy is again returning to the ACA about the millions covered by the Act. Again, if it were 2 or 2 million or 22 million, it would not have bearing on the narrow legal question of severability involved in California v. Texas.
10:25 — Leahy is continuing to question Barrett on the cost of insulin. A rather bizarre line of questioning. He added “I would not expect you to.” Precisely. She is not the nominee for the Secretary of Health and Human Services.
10:30 — This is getting a bit bizarre as Barrett is asked if she knows a variety of political facts that have no relevance or bearing on her confirmation. Her substantive role in such questioning is about as substantive as the ficus plant in the corner of the Committee room.
10:32 — Leahy just again asked her to recuse herself despite the the lack of any basis for such recusal. There is no conflict of interest in Barrett sitting on such a case. Indeed, we should want a full court to decide such a challenge rather than risk a tie.
10:44 — Leahy just brought up the Box case in 2018 and Barrett’s dissent. However, it is notably that the Supreme Court supported her view and reversed on that issue.
10:47 — Leahy just raised her signing the statement on abortion. She said that she signed it on her way out of church. The statement reaffirmed her moral opposition to the abortion. However, she insisted that her personal views have no bearing on how she would rule as a jurist.
10:50 — Leahy just asked about the Blackstone group and tried to tie her to the views of the groups. However, she simply spoke to the group and noted that she had no idea of literature from the group on issues like same-sex marriage. Barrett then invoked Kagan again on the issue of stating her position on same-sex marriage.
10:57 — In responding to Sen. Cornyn, Barrett again rejected the notion that policy weighs into a jurist’s decision.
11:03 — Barrett was just asked about the establishment clause by Cornyn. She gave a basic balancing response between free exercise and establishment values.
11:05 — Durbin just expressed confusion on “where does this notion that you would violate your oath come from?” He insisted that Trump is to blame. He might however want to remove the giant posters showing people relying on the ACA and the statement of his colleagues like Booker that they will vote against her because of her expected vote against the ACA. Durbin then incongruously launched back into the ACA.
11:12 — Barrett just said that watching the George Floyd video had a huge impact on her as the mother to two black children. She said that she wept with her children in watching the video.
11:16 — Durbin is raising the Kanter case in 2019 on the Second Amendment. He is slamming Barrett for her dissent. Kanter was convicted of selling fraudulent shoe inserts. He was not a violent offender. Barrett questioned the basis of taking away his Second Amendment rights without showing a violent risk. This was the most substantive exchange yet. Notably, Barrett cited her originalist view of the amendment.
11:21 — Durbin is describing violence in Chicago and labeling Barrett as fostering the violence. Barrett noted that nothing she said in the case would prevent a state from taking away guns if there was a showing of dangerousness.
11:25 — Had another good answer in pointing out the wide array of crimes considered felonies that would could be used as a categorical exclusion from the 2nd Amendment right.
11:27 — Interesting discussion of the comparison of depriving the right to vote as opposed to gun possession based on a felony. Barrett tried to explain that it turns on different language in the respective constitutional provisions. Nevertheless, Durbin’s questioning on this point was effective, even if it ignored the legal distinctions drawn by Barrett.
11:31 — Durbin just hit Barrett over dark money allowed by Citizen’s United to support her nomination. He of course did not mention the huge amount of such money used to oppose her nomination.
What is most striking is the attack of Democrats on a jurist who insisted that individual ex-felons deserve some pre-deprivation review or showing before losing a constitutional right as in the Kanter case.. Durbin’s dismissive comments on “Ricky” suggests that, as a former felon, he can be categorically excluded from certain constitutional rights.
11:34 — Sen. Lee is hitting his colleagues on pushing Barrett to confirm her position on cases like the ACA. Lee just quoted Ginsburg at length in refusing such answers.
I have to run to do some on-air coverage.
12:47 — I’m back
12:48 — Whitehouse is back to the theme that he raised with Kavanaugh discussing “outside forces” and Citizen’s United. He again is omitting the dark money and outside forces spending wildly to be opposing this nomination.
12:50 — Whitehouse is stressing that the Republicans promised to pick judges who would oppose Roe or the ACA. However, the Democratic presidential candidates pledged to pick only nominees committed to preserving Roe and other values. Again, one pledge is anathema while the other is aspirational.
12:54 — Whitehouse is attacking the commitment to picking pro-life justices but Democrats insisted on picking only pro-choose nominees. Nevertheless, Whitehouse and others supported Kagan and Sotomayor refusing to answer these questions.
12:56 — Whitehouse is omitting groups like Fix Our Senate which are spending considerable amounts to oppose this confirmation. [Note: just a correction. I was discussing groups on both sides of the Barrett nomination and I mistakingly included the Article III Project with liberal groups on the other side of the Barrett nomination. It is in fact not opposing the Barrett nomination. I apologize for the error.]
1:03 — The Whitehouse circles are beginning to look like an NFL playbook but it is all x’s and no o’s. What he is describing as funding briefs and opposition campaigns is also evident among liberal groups.
1:06 — I happen to support same-sex marriage but I do not see why conservatives should not be organizing to appoint conservative judges as liberal groups organize to appoint liberal judges. These campaigns constitute forms of political speech and association.
1:08 — Whitehouse is noting that these decisions are all 5-4. However, the problem is the five conservatives voting as a group, not the four liberals voting as a group.
1:16 — Barrett is now responding to Cruz on the importance of the protection of the freedom of religion and other rights. These are “breather” questions for a nominee.
1:18 — Cruz is noting that even if Roe were overturned, it would revert to a matter of state law.
1:22 — Cruz is hitting Whitehouse. Of the top 20 organizations giving to political causes, the vast majority of SuperPac donors gave to Democrats not Republicans. He is hitting the dark money hypocrisy in omitting liberal dark money.
1:30 — I have to go teach my Supreme Court class.
2:58 — I am back from the Supreme Court class where we ironically were debating the ACA case. We all give two votes on the merits and the predicted outcome. On the prediction, the class voted overwhelmingly that the ACA would likely not be struck down and the mandate provision would be viewed as a severable.
2:59 — Sen. Coons is challenging Barrett on her criticism of the Roberts decision in ACA. Many of us criticized his logic and analysis. Even those in support of the ACA, criticized Roberts’ analysis including myself.
3:00 — Sen. Coons expressed surprise that the ACA was back before the Court. Again, there is a lack of clarity. The drafters and the Obama Administration insisted that the mandate was the thumping heart of the ACA and that the ACA could not exist without it. Roberts referred to that assumption. Now the mandate is dead. Obviously there is a question based on what the Obama Administration argued and the Robert court decided in upholding the Act.
3:04 — Coons is objecting that the DOJ is failing to defend a federal law as a violation of its duty. It is a fair point but the Obama Administration also refused to defend federal statutes like the Defense of Marriage Act — and Coons supported that position.
3:07 — Coons is raising Trump’s reference to any challenge to the election as a reason to push for the confirmation. Coons is again raising recusal. The problem is that impartiality would not be reasonably questions simply because Barrett was nominated shortly before the election. Indeed calling for her recusal is itself an effort to influence the result in such a challenge.
3:15 — Sen. Hawley got Barrett to say that she disagreed on cases with Scalia when she clerked for him.
3:17 — Barrett is again discussing her speaking to the Blackstone program during the summer. She also said that she signed that pledge raised by Leahy on the way out of church 15 years ago. The statement affirmed her pro-life view and it was something that the church community was supporting.
3:57 — Blumenthal is again demanding recusal while blaming others for undermining her integrity. Blumenthal insisted that her non-recusal would be “a dagger at the heart” of our democracy. It is bizarre. Again there is no plausible grounds for recusal. Then after discussing the impropriety of politics being perceived as influencing the Court, Blumenthal “shared” a letter asking her to “please protect” a little boy. It is a direct call for her to vote based not on the law but the policy or persons involved in a law. These are incredibly moving stories but this is not the role of a jurist. She is expected to rule on her view of the law not her view of the benefits of the law.
4:15 — Blumenthal is continuing the individual case stories and saying that these individuals are asking for answers from Barrett. These are moving stories but Blumenthal is demanding answers to questions that prior nominees have refused to answer. Blumenthal supported nominees like Kagan in refusing such answers. Yet, Blumenthal is saying that her answer is “chilling” and “horrifying” and “fearful.”
4:22 — Blumenthal just misrepresented the Kanter case as usurping legislative authority with Barrett’s own policy decision on guns. You can disagree with her view of the Constitution, but she was ruling on the scope of individual right. Judges do not usurp legislative authority in such opinions. They are ruling that they lack the authority. Again, you can disagree but Barrett was demonstrably not writing on her view of policy.
4:27 — Blumenthal is now utterly unmoored from the realities of Kanter. He said that she usurped the legislative judgment on dangerous people. Barrett actually said that the right could be taken away from dangerous people but you had to show they are dangerous.
4:41 — Sen.. Hirono is now giving new stories about those who might be harmed by Barrett voting against the ACA. “What the heck?” She asked Barrett is these tragic stories should influence her. Barrett answered correctly that she would rule on the law.
Hirono is expressing disbelief that these tragic stories would not be considered “legal arguments.” They are not legal arguments standing alone. They are tragic and examples of real world consequences, which are often considered but are not necessarily determinative.
4:54 — Hirono is demanding “precedent” based on “real-life impacts.” That is not a legal analysis but simply upholding laws based on your agreement with the policy. She has called the distinction between policy and law as a “fiction.” That certainly makes this hearing simpler. It is all just politics.
5:00 — Hirono just accused Barrett of using offensive language for referring to “sexual preference.”
5:35 — Sen. Booker is now grilling Barrett on her ability to empathize. So Barrett is now expected to express empathy on demand? We are all moved by these stories but they are not the victims of Judge Barrett and the stories are not relevant to her view on the narrow and technical issue of severability in a statute like the ACA.
5:44 — There is actually a substantive discussion that has broken out by accident in the hearing. Booker and Barrett are discussing the case of Smith case and Barrett did a good job in explaining why she ruled against the Illinois DOT employee. Unfortunately, Booker moved on. However, Barrett was noting that while she said in the case that “the n-word is an egregious racial epithet” she held that there had to be evidence that the use of the word altered conditions in the workplace.
5:50 — Booker is now raising again the use of the term “sexual preference” rather than “sexual orientation.”
6:54 — We are back by Sen. Kamala Harris is literally speaking to the public on the need for pandemic relief.
6:56 — once again Barrett is virtually a non-entity as the case for the ACA is made to the public. It can only be repeated that the ACA case is exceptionally unlikely to result in the striking down of the ACA and concerns a narrow technical issue of severability.
6:58 — Harris just said that the GOP needs just one more vote to strike down the Act and “this is happening.”
7:26 — Kennedy is repeatedly asking if Barrett is a liar. This is almost as painful as Booker repeatedly asking if she is empathic.
7:30 — Interesting comment by Barrett that suggested that if you have not thought about issues by middle age you are probably not qualified for the Court. Notably, Thomas said that he had no views on abortion and had not really thought though the issue.
The thing I find most notable about ACB’s answers today is that the GOP traded a hundred thousand American lives for her seat on the court, and there are thousands of Americans walking around healthy right now who will be sick and dead by year’s end. – Chris Hayes
OK, Chris Hayes uttered some incoherent nonsense. You’re retailing it why?
If you didn’t understand his point, you’re pretty dense.
I understand it. It’s patently false. So why is he uttering patently false things? Because liberals do that. All the time and about every issue.
President Trump at a Sanford FL rally last night after being hospitalized one week ago with Covid. And he still looks healthier and more energized than Joe Biden on a good day.
Kamala Harris ranting at VP debate: “If you have a preexisting condition—heart disease, diabetes, breast cancer—they’re coming for you, If you love someone who has a preexisting condition, they’re coming for you. If you are under the age of 26 on your parents’ coverage, they’re coming for you.”
ACB at confirmation hearing: “I am not hostile to the ACA.”
Check out Barrett’s prior writings on the ACA. Define what “hostile” means–it doesn’t rule out that she will overturn it, coming up with some technical grounds. Again, whatever lies she tells today about prior positions she has taken won’t matter. She was nominated specifically to overturn Roe and the ACA, and to help Trump cheat again, by challenging the results of the election he stands to lose, according to polls. Her nomination came from the Federalist Society. This is just a game. She knows the American people do not think it is fair to put aside things like COVID relief in order to shove a radical conservative on the SCOTUS less than a month before an election that, according to polls, substantial numbers of Republicans are likely to lose. She is arrogant and egotistical enough not to care what the American people think. She is already a failure, and, no, she doesn’t get a three-letter nickname like Justice Ginsberg received.
Federalist society is an excellent organization. Why am I not surprised that you hate them. Jacobin leveller ideology lives in you strongly Natch
Nancy Pelosi is responsible for stalling, holding up COVID relief.
There’s been a bill sitting on McConnell’s desk for months.
I believe the Senate Dems used that old Jim Crow relic to stop the Covid relief bill?
Klobuchar: “We should be doing something else right now. We should not be doing this. We should be passing coronavirus relief like the house just did…”
You can’t make this up:
Klobuchar is one of the many Dems who BLOCKED coronavirus relief just 3 weeks ago.
ACB is replacing RBG. This is RBGs legacy. The lesson? Know when to step down.
RBG: She is arrogant and egotistical enough not to step down when President Obama pleaded with her to….
Anonymous at 1:28 PM is arrogant and egotistical enough to pretend to know what, if anything, Obama said to RBG about retiring.
Anon @2:05p ….speaking of “arrogant and egotistical” …..RBG had this to say in an interview with her good friend, NPRs Nina Totenberg:
“When Totenberg asked if Ginsburg had any regrets about not stepping down during the Obama administration, shocked whispers rippled throughout the crowd.
“It has been suggested by more than one commentator, including some law professors, that I should’ve stepped down during President Obama’s second term. When that suggestion is made I ask the question: Who do you think the president could nominate that could get through the Republican Senate that you would prefer to have on the court than me?” Ginsburg replied to loud applause.”
——————————-
So….because of RBGs bad judgment, her arrogance, her addiction to power and influence, and her refusal to retire well into her 80s, and even after her 4th bout of cancer…..Amy Coney Barrett will be replacing her on the Supreme Court. It is sweet justice, is it not?
As someone else put it: “If ACB is the professional “polar opposite” of RGB the nation will be lucky.”
Coming out sounding like a Constitutional Centrist to me. So what’s the beef Socialists. You aren’t supposed to be voting in our Constitutional Republic anyway,.
Professor……..This is great! I love the running commentary.
YES BRAVO PROF TURLEY AND THANKS
Sen. Graham: “Do you own a gun?”
ACB: “We do.”
Well that she does considering her status and the hate some people are showing now towards Republicans.
It’s ok, in flyover most folks have arms and this is of no concern to law abiding citizens who vastly approve of lawful firearms ownership,.
And while we’re at it, how about an Inspector Clouseau question: Does your dog bite? 😊 🐶
I was very disappointed that she blamed the George Floyd event on racism. When was that proven?
I agree with you. It is a difficult position to take these days, but I do not see racism in that scenario either.
Too bad. It was never proven that Floyd’s death had anything to do with racism.
But once we are innundated with a particular notion it becomes ‘common knowledge’ that is first unquestioned and then unquestionable.
Young………hubby just said that at least her answer will drive the Dems crazy!! She’s supposed to be a white supremacist for Pete’s sake!
“Never proven” is an anodyne way of putting it. There was no evidence whatsoever it had anything to do with that; just shop clerks, cops, and EMTs doing their jobs. The best evidence, btw, indicates he died of an overdose of fentanyl. If the ambulance hadn’t gone to the wrong location and arrived late or if the police had missed him at the store, he’d have died in the hospital, died in the ambulance, died in some random location, and we’d never have had to hear a word about it.
Art deco…………..I don’t know what the hell “anondyne” means….but I do know that the entire world thinks race is the reason it happened. Yes, I know he more than likely died of fentanyl overdose. Thank you.
Young………..hubby just said that at least her answer will drive the Dems crazy……She’s supposed to be a white supremacist, for Pete’s sake!
Cindy– There is that. Though I hate to see a destructive idea propagated this is not the forum to get entangled in it. The Democrat senators are like internet trolls trying to ensnare people in corrosive but fruitless arguments. They couldn’t this time.
“We wept together.”
She’s in. Skip the remainder of the hearings. Call a vote.
Agreed. I said early on that the hearings should be skipped altogether. Let the senators exchange memoranda for a few days and then vote. I stopped watching hearings some while back. They are mostly people I don’t like under any conditions but acting their worst in these settings. I saw an article recently suggesting that I am not alone in turning away from the hearings.
After the disgraceful, grotesque, circus that the Dems made of the Kavanaugh hearings, they are owed no courtesy whatsoever. All this does is give Dems time to grandstand, push out their lies, stoke voter fear, and rail on Trump. It’s unbearable to watch these Dems.
It is unbearable to watch the Dems in these hearings so I don’t bear it.
Well done, you. If only I could be so strong. It’s like wanting to smell the spoiled milk just to be sure it has gone bad. Yes, yes it has. 😉
Cindy, I don’t think she blamed the Floyd event on racism. It had an impact on me as well. Who wants to see another person die? I was wrong in what I believed at the time and even then I didn’t think the event was based on racism. I don’t think the racism card should be played under George Floyd’s name. To me it is degrading towards the African American community.
Allan………I’ll have to watch that excerpt again….but you’re right. It is so degrading to define blacks in terms of race!
They don’t see to feel it’s degrading, when they do it to themselves, only if we have something to say about it. But this hearing need not belabor “racism” such as it supposedly is or is not
Agree, mr kurtz………!
Every time I see Leahy I think he was an inspiration for Jeff Dunham’s “Walter”.
Leahy ≠ Walter
HOWEVER
Biden = Walter
Na, Joe has too much hair (plugs).
Leahy doesn’t sound like he’s all there. Is he ok?
Leahy is mentally flailing around. Lots of serious brain farts.
Listening to Sen. Leahy is worse than waterboarding. (caleb hull)
Vermont Sen. Patrick Leahy is an 80 year old garbling his words so much that it is difficult to understand what he says and it has nothing to do with volume. He is an old garbling man. What this hearing shows is how too dam old these Senators are. Term limits.
Agree Se. Leahy is garbling and rambling and trying to get his points about what the Congress has failed to do as SCOTUS issue. But the people of Vermont keep voting for him so they are the ones saying no to term limits.
“Barrett said that she agrees with the Ginsburg rule as something that ‘reinforces judicial independence.’ Barrett also repeated that no one has asked her before her confirmation about his [her] view on any case.”
Thanks for your excellent running commentary, Mr. Turley. This was a significant point in Grassley’s examination and in the morning thus far.
Senator Leahy is pushing hard on the Trump/Barrett quid pro quo argument now, i.e., that the President’s confidence in Barrett’s nomination = ACA + Contested Election 2020 predetermination on Barrett’s part. He is further pushing hard for her commitment to a recusal. She is firmly resisting this politicization of the court’s independence.
Leahy: “Let me tell you what President Trump expects of you.”
Good grief.
Turley writes: “Leahy just again asked her to recuse herself despite the the lack of any basis for such recusal. There is no conflict of interest in Barrett sitting on such a case. Indeed, we should want a full court to decide such a challenge rather than risk a tie.”
I agree that we should want a full court rather than risk a tie. But it sounds like Senator Leahy was sufficiently persuasive that he obtained an admission from Judge Barrett that she will consider recusal at the appropriate juncture, along with the rest of the court, taking into account “any appearance” of a conflict of interest.
ACB is responding entirely from memory, no notes. Every Senator is reading questions and making points from prepared notes. ACB is operating in a different league than most, if not all, of the Senators questioning her.
“Amy’s been 10 hours without notes. Can’t Kamala get thru a few minutes without a script?”
No.
“I expected Whitehouse to be goofy, Hirono to be asinine, and Booker to reprise Spartacus. I did NOT expect Kamala Harris to stumble, fumble, and mumble her way thru a campaign script as Barrett dropkicked her with ease. Intelligence always annuls the folly of hubris & malice.” @GreggJarrett
That is not an admission that is her reciting an appropriate possible future exercise of judicial ethics.
Judge Barrett went even further in her position on recusal under examination from Senator Coons than Senator Leahy. I think it added to her credibility, but I agree with Turley: “…calling for her recusal is itself an effort to influence the result in such a challenge.”
i agree it did add to her credibility and what turley said about it was perceptive too
Barrett is misrepresenting Ginsburg’s actual stance on answering questions. Ginsburg testified explicitly that there was constitutional right to abortion.
Barrett says “No hints, no previews, no forecasts” to Feinstein. But she gave hints, previews, and forecasts to Sen. Graham.
What did Ginsburg actually say? “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” She was talking about a specific case, not general issues.
It was a statement about specific upcoming cases, not about general issues, such as whether discarding an IVF embryo is homicide.
Here’s more of what Ginsburg said about “hints” in context, in an exchange with Sen. Cohen, where he asks her to elaborate on what she meant by “rank discrimination”:
Ginsburg: I think base discrimination is deplorable and against the spirit of this country — discrimination, arbitrary discrimination without reason.
Cohen: No. Does “rank” mean institutional discrimination? Does it mean intentional discrimination? Does it mean arbitrary discrimination? Because as I understand the Constitution, it is permissible to discriminate or to classify provided there is a rational basis for it.
A. If I discriminated against some person for reasons that are irrelevant to that person’s talent or ability, that is what I meant when I said rank discrimination: arbitrary discrimination that’s unrelated to a person’s ability or worth, unrelated to a person’s talent; discrimination because — simply because of who that person is and not what that person can do.
Q. Or does? Or does? In other words, do you draw it upon that person’s status or conduct? Would it be a difference, in your judgment?
A. A person’s birth status should be — should not enter into the way that person is treated. The person who is born into a certain home with a certain religion or is born of a certain race, those are irrelevant characteristics to what that person can do or contribute to society.
Q. What about sexual orientation?
A. Senator, you know that that is a burning question that at this very moment is going to be before the Court, based on an action that has been taken. I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.
Q. Well, it seemed to me that you already did comment on that when you responded to Senator Kennedy this morning. He talked about race, religion, and gender and sexual orientation, and I think your comment was rank discrimination is deplorable under all of those circumstances.
A. I think rank discrimination for any reason — hair color, eye color, you name it — rank discrimination is un-American for whatever reason. If you have a classification, there has to be a reason, as you said, for any classification. [end quote]
Today, Barrett said “As a person, I have general belief that racism is abhorrent.” But Jill Filipovic quotes from a racial discrimination case where Barrett “wrote that being called the n-word at work by your supervisor does not constitute a hostile or abusive work environment” (quoting Filipovic, the quote from Barrett is embedded in the tweet):
https://twitter.com/JillFilipovic/status/1316015142828556301
discrimination is not always invidious. the word simply means recognizing a difference. now it is cloaked in all sorts of negative connotations but it still has a certain meaning in English usage which can refer to a whole world of differences which may for example, have nothing to do with people. ie, this is coffee and this is tea; i like coffee not tea, etc
if we say that 1 and 2 are not equal, we discriminate between their arithmetic values.
She was talking about “rank discrimination,” not discrimination in food, Kurtz.
If we spend time trying to dissect the meaning of ‘rank discrimination’ with respect to law we have gone much too far into the subject. Even ‘obscenity’ is still a mess. Now we want to troll each other over ‘rank’ discrimination?
Good point Young. Common sense frequently is a better answer than all the legalisms put together.
what is rank discrimination then exactly?
I put it into google and i get this
https://link.springer.com/chapter/10.1007/978-3-642-39091-3_35
feel free to enligthen me
My reason for introducing the quote was not to debate the meaning of “rank discrimination” (if you want to understand what RBG meant by that, you can read what she wrote about it; she used the phrase in more than one of her opinions). but to note the context in which RBG used the phrases “no forecasts, no hints” and “no hints, no forecasts, no previews” — that she was refusing to talk about how she might rule in *specific* cases: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”
RBG did not refuse to make general statements, such as stating that she believed there is a constitutional right to an abortion. ACB is not dealing honestly with RBG’s own words when ACB tries to use RBG’s statement to avoid saying whether she (Barrett) agrees that there’s a constitutional right to an abortion.
ACB is not dealing honestly with RBG’s own words when ACB tries to use RBG’s statement to avoid saying whether she (Barrett) agrees that there’s a constitutional right to an abortion.
Well isn’t this interesting. You believe ACB is being dishonest by not offering her opinion on the constitutional right to abortion. That is essentially a claim that she is lying by omission. However there is a long standing rule as you noted that A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” She is taking a principled stance to not violate the judicial process. You on the other hand are under no such obligation and yet somehow believe you’re being honest in lying by omission. Stop being a hypocrite.
“You believe ACB is being dishonest by not offering her opinion on the constitutional right to abortion.”
Nope. I think she’s using RBG’s words dishonestly, which is why I said “ACB is not dealing honestly with RBG’s own words.”
Those two issues — whether she’s using RBG’s words honestly vs. whether she’s “being dishonest by not offering her opinion on the constitutional right to abortion” — are distinct, though I recognize that you don’t want to deal with that distinction, because it undermines your argument.
You’ve inferred something I didn’t imply. The problem is with your mistaken inference, not with what I actually said.
Kurtz– Thanks for the link. I was wondering if it was written by the Babylon Bee. But, it isn’t very funny so I suspect its origin is The Tower of Babylon where so many papers of this character are written these days.
Kind of funny that anyone dares to publish crap like this.
I wonder if the same article comes up if I google ‘rank stupidity’.
I wonder if Alan Sokal is in this field now?
https://en.wikipedia.org/wiki/Sokal_affair
Turley writes: “Interesting discussion of the comparison of depriving the right to vote as opposed to gun possession based on a felony. Barrett tried to explain that it turns on different language in the respective constitutional provisions. Nevertheless, Durbin’s questioning on this point was effective, even if it ignored the legal distinctions drawn by Barrett.”
https://casetext.com/case/kanter-v-barr?
453 Footnote 3: “Felon disenfranchisement laws have a long history, and the Fourteenth Amendment’s protection of the right to vote expressly acknowledges the authority of state legislatures to enact such laws. The Second Amendment contains no similar acknowledgement.”
Durbin appeared to stop and twist here, without giving sufficient weight to the text of the Fourteenth Amendment. But the footnote continues: “Legislative power to strip the right from certain people or groups was nonetheless a historically accepted feature of the pre-existing right that the Second Amendment protects. Thus, such a regulation does not ‘infringe’ the right to bear arms because the right was always qualified by the government’s power to prevent the dangerous from exercising it.”
Is this not an argument more for public safety gun regulation than the inviolability of second amendment rights? How broadly does Judge Barrett believe Indiana is constitutionally empowered to define dangerousness? How broadly can Congress act to “prevent the dangerous from exercising” their second amendment right?
Given her strong support for individual rights, and her distinction between civil rights and individual rights, an intersectional follow-up question Durbin might have examined concerns Barrett’s views on the right of women to vote: under what conditions (e.g., female felons in State vs male misdemeanants in State B) should this right be restricted, and on what constitutional basis?
I still can’t figure out what “intersectional” and “intersectionality” are supposed to mean. I guess i have been away from college too long.
but i understood this question:
“Is this not an argument more for public safety gun regulation than the inviolability of second amendment rights?”
yes it sure could be such an argument. that’s consistent with the reasoning of the case.
heller was a much needed update to 2d amendment law, which had not seen definitive SCOTUS action since the National Firearms act was approved in US V Miller back in the 30s.
Senator Hawley and Judge Barrett just destroyed my individual rights/civic rights “intersectional” paragraph anyway. All that remains standing (somewhat) is this: Durbin might have examined Barrett’s views on the right of women to vote. Under what conditions (e.g., female felons in State A vs male misdemeanants in State B) should this right be restricted, and on what constitutional basis?
The Second Amendment addresses militias, not an individual right to gun ownership. Is she really an originalist?
Good, timely point, Anonymous. Does Judge Barrett see gun ownership as an individual right more because of her interpretation of the 2nd Amendment through to Heller, or Heller back to the 2nd Amendment? Why wouldn’t an originalist tend to side with the minority in Heller?
Look at the wording in several other amendments. “the right of the people”
It is an individual right not a group right.
Take note that “the right of the people” is listed in several amendments and those words refer to the individual’s right.
rather allan it is an individual right to keep and bear arms;
AND a group right, the group right of the states to maintain organized militias
it is BOTH
Helpful discussion Anonymous, Allan, Mr. Kurtz. Certainly some arms which are constitutionally protected for the collective defense of the state (by today’s military) are not constitutionally protected for use in hunting, sport and self-defense by civilians? Both rights – the individual and the group right – lead to a consideration of the relationship between Article 26 of the UN Charter and the 2nd Amendment of the US Constitution.
US V Miller defines that a short barrelled shotgun was not a militia arm within the meaning of the Second Amendment therefore the National Firearms act was not unconstitutional under the Second Amendment. It implicitly recognized an individual right. Maybe 1939? from memory
The National Firearms act regulates short barreled shotguns under 18″ in barrel length, rifles under 16″ in barrel length, silencers/ suppressors, and fully automatic firearms. They are not totally banned, just subject to a federal licensing scheme which is a lot of paper work and transfer taxes. One more thing, no new full autos may be manufactured for civilian sales after 1986. So the million or so floating around out there under federal license are the only ones. But they can make new silencers and sbrs and sbs indefinitely, subject to the licensing and transfer fees.
“Destructive devices” are also banned or regulated, like grenades or howitzers or whatever. bombs. generally forbidden for civilian use, subject to the usual agricultural and industrial use of explosives.
“Article 26 of the UN Charter ”
Though anything can be used in explanatory argument I don’t think any laws outside of the US should have bearing on a US Supreme Court decision. (I’m not saying you felt it should.)
Militias are noted in the Constitution as being under the training, funding, and command of the President and Congress. It was intended as a real thing, not a state of mind of guys pretending to be warriors.
there are two legal meanings of militia. the organized mlitia refers to the state militias aka national guards., those are NOT under command of the POTUS, but they MAY be “federalized” under his command subject to certain law and procedure. There is a case like that called Popoff or something like that.
the unorganized militia are men of a certain age capable of bearing arms. this has been defined in federal law at different places and times.
private firearms shooting and training groups are not illegal in any state. gun clubs, conservation clubs, shooting teams, there are thousands and thousands of them.
however, there are state criminal codes about “gangs” and there are even some laws about illegal militias but if they are tied to some criminal activity then usually they are more or less the same as anti-gang laws. those laws do have a checkered history of constitutionality mostly under First amendment right of association concerns, but there is one Second amendment case related. see US v Cruikshank
Yes, Kurts, but I believe the operative words refer to the individual as they do in others in the Bill of Rights.
Anonymous
it says “the right of the PEOPLE” in its text which is the very same language used in other places in bill of rights to refer to an individual right
it is ALSO a state right
Note, the judiciary has hardly impeded the liberal agenda in any venue. In recent years, the court has invalidated some gun control measures which were inconsistent with the plain meaning of constitutional provisions. Some decades ago, appellate courts restricted the franchise of trial courts to prescribe busing programs across school district boundaries. That pretty much exhausts the list of impediments (and, note, you’d be hard put to find any examples of busing programs undertaken consequent to the decisions of elected officials).
Liberals whine about Bush v. Gore (which landed in the Court’s lap due to the misconduct of the Florida Supreme Court and which concerned a controversy which had to be resolved on deadline), but nothing happened there but liberals not getting what they wanted during a particular political conflict. Liberals whine about Citizens United, but the import of that decision is that corporations have a right to speak and publish, something liberals want limited to corporations which habitually favor liberals (e.g. trade unions and media companies). The implication of Barret replacing Ginsburg is that some issues will be tossed back to state legislatures. That is unacceptable to liberals, because that means that liberals might not prevail on an issue they care about. N.B., none of these issues have anything to do with political architecture or processes. They have to do with substantive policy choices.
What’s at the heart of this is the inability of liberals to concede that they live in a country with other people, that those other people have interests and values different from those of liberals, that we have electoral and deliberative institutions to chose between competing interests and values, and that sometimes you win and sometimes you lose.
thats right Art they will concede nothing. they are fanatic power lusters
DSS, good statement. Liberals want to control freedom of speech. Citizens United had to do with the release of a movie detrimental to Hillary too close to the election. It the movie was banned why not a book? If the book was banned why not a lawn posting?
I don’t know how that decision could be decided any other way except if one wanted to promote the abolition of free political speech.
Turley playing defense for Barret and the GOP. That;s his regular job now, complete with Fox News priveleges.
Yawn.
Gainesville cannot conceive of a professional opinion distinct from political partisanship or from a viewpoint on some policy question.
Art Deco trolls by calling people Gainesville.
PS Turley doesn’t want to get that this hearing is a farce and the rules no longer apply. It’s theater because power, not principle, governs. That he either doesn’t understand that or wants to pretend otherwise reflects poorly on him.
Leahy calling her on her support of blocking Garland. No she’s lying and saying she didn’t say what she said. There was no reason for her to say that except to give cover for the Senate failing to perform it’s constitutional duty to advise and consent. She looks like the hypocrite she is.
it’s not a farce. this is what Senate approval looks like. you just are mad because your favored party does not control the process at this time
Im sure your time will come, Biden’s secret packing plans or not. feel free to relax.
Ask Barrett if she ever had an abortion. Hook her up to a lie detector first.
Liberty2nd wrote, “Ask Barrett if she ever had an abortion. Hook her up to a lie detector first.”
That’s none of their business.
When Professor Barrett was first named I did go to Youtube to see if she had ever addressed abortion and other issues. I did find that in 2016 while doing a give and take at the University of Jacksonville, she did indicate how she saw things then. If you go to that tape and stop it at I believe minute 35:00 or so, you will hear her say that because R v W was decided about 50 years ago, she did feel then that the precedent had been set. However, she mentioned that things that were added on after and possibly in the future might require a closer look but only at those new features.
I live close to NY state and was very aware of Governor Cuomo’s real expansion to R v W. Right now in NY you can just make an appointment and up to the 24th week, it will be done. However, Governor Cuomo takes it further and in broad terms leaves it to the mother to decide if there are special reasons for her to ask for a later abortion. The news and magazines made clear that if a woman feels she just can’t cope, an abortion would be given to her and with anesthesia right up to and really through natural birth. It caused quite a ruckus but I don’t believe anyone has taken it to court. Difficult to think of a situation where that would surface. Cuomo himself says he is a practicing Catholic. I suspect though if Judge Barrett was handed that sort of case she would most likely find a hook to hang her hat on.
To me the interesting part of all of this is she did in 2016 seem to accept Roe v Wade as settled law. I am not an attorney and am deaf so I relied on the captions which probably are far from perfect. Therefore, it would be wise if Professor Turley or another lawyer would check that tape out and listen to her speaking.
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I think it’s called ‘Jacksonville University’ and it’s actually a private teaching institution with an enrollment under 4,000. The University of North Florida is the research institution in Duval County.
“Voting on a confirmation based on the expectation of a nominee’s vote on a pending case is deeply troubling.”
But a President appointing a Justice based on an expectation of a nominee’s vote on pending cases, and settling disputes on a pending election .. are okay with Turley. It is only the Democrats who are supposed to exercise restraint.
In the dress department, Amy out did her Democrat hags so there is one more reason for the Democrats on the Judiciary Committee to vote against her.
The greatest lie of all is that the Democrat party is the party FOR women. That HRC and RBG were for ALL women. What a garbage lie. They tear down any woman who does not adopt, support and get lockstep in line with their political beliefs and agenda. What a bunch of fluke.
She’s on now and in all the hearings I’ve witnessed for nearly 4 years this Lady is impressive. I wish her much luck.
Bork was “impressive”, also.
No, Bork was impressive. And treated horribly by the Democratic Party and the nexus of lobbies and advocacy groups around it.
Bork lost me when he said the 10th Amendment is basically meaningless.
He was referring to the 9th amendment.
I think you are right. I was drawing on a vague memory. Mostly I remembered my shock. I don’t want the 9th dismissed either. I seem to recall that Hamilton and Jefferson had a dispute about a Bill of Rights. Hamilton didn’t need it because the Constitution limited government. Jefferson thought that unless the rights were spelled out they would be eroded. Probably both were right, but the 9th made it clearer. Even when spelled out the pressure is on to erode basic rights. Bork lost me there.
There was also a legitimate concern common to construction of statutes that when items are enumerated that is their limit. If we list rights in a Bill of Rights do we lose all of them we neglected to list? The 9th settles that issue, or it should.
Here, Fox, Twitter…?
Looking forward to following your perspective. Thank you!
I’m looking forward to your commentary, and thank you ahead of time for the free seminar …